Last Friday, Judge Matthew Kacsmaryk ordered an end to the sale of mifepristone, a drug approved by the FDA 23 years ago that’s used to induce abortions, anywhere in the United States. He’s just a single judge in a small courthouse in Amarillo, Texas. Does he really have the power to dictate national policy about drug safety? If so, should he have that power?
The answer to the first question is complicated—more on that in a moment—but the answer to the second is easy. Of course he shouldn’t.
[Mary Ziegler: The Texas abortion-pill ruling signals pro-lifers’ next push]
When I ask new law students what courts are for, I’m likely to hear that they’re for “holding government accountable” or “protecting our constitutional rights.” That’s a common lay understanding: We’ve grown accustomed to judges taking center stage in national debates over abortion, health care, immigration, and other headline-grabbing issues.
But the traditional role of the courts is not to superintend what the government does. It’s to resolve disputes between the parties who appear before them. By offering a neutral, state-sanctioned forum, courts reduce the risk that angry people will take matters into their own hands. That’s a crucial but limited role. Judges aren’t supposed to adjudicate abstract political disputes or to rule on the rights of parties who aren’t involved in a given case.
Over time, however, some federal judges have become comfortable with a more sweeping vision of their role. Especially in the past decade, as the partisan divide has hardened, judges on both sides have grown more willing to wade into divisive policy disputes and to extend their rulings not just to the parties before them, but across the whole country.
The resulting “nationwide injunctions” are pernicious, as the Notre Dame law professor Sam Bray and I argued five years ago in this magazine. For starters, they purport to settle a legal question for the entire country, even if cases presenting the same question are pending before other judges who might have disagreed. That cuts off the ability of smart judges to contribute to an ongoing legal debate.
Nationwide injunctions also create procedural train wrecks. The government usually has no choice but to race to an appeals court or, failing that, the U.S. Supreme Court, to get the injunction lifted. These rushed appeals don’t have the benefit of full, careful briefing and argument. That’s exactly what happened in the mifepristone case: The government scurried to the Fifth Circuit Court of Appeals to ask it to pause the lower court’s decision, which the court did in part late Wednesday evening.
Finally, and of perhaps greatest concern, nationwide injunctions supercharge the incentives for ideologically motivated plaintiffs to hunt for like-minded judges to hear their cases, knowing they can win big if they can just find the right judge. That’s why the plaintiffs in the mifepristone case filed suit in Amarillo. They knew their case would be assigned to Judge Kacsmaryk, who in his short time on the bench had shown himself to be a reliable partisan warrior. It’s also why many of the highest-profile challenges to Trump-administration policies were filed in California, with its relatively high concentration of liberal judges.
The ideological pattern of nationwide injunctions is as predictable as it is striking. During the Biden administration, nationwide injunctions have been issued against its mask mandate on public transportation, its vaccine mandate for health-care workers, its extension of stimulus relief to Black farmers, its effort to set a price on the social cost of carbon, and its termination of former President Donald Trump’s “remain in Mexico” policy. Every one of these injunctions came from a judge appointed by a Republican president.
Likewise, nationwide injunctions were issued against the Trump administration for its travel bans, its public-charge rule, its exemptions from the contraception mandate, its changes to asylum policy, its abortion-related rules under Title X, and its elimination of the Deferred Action for Childhood Arrivals program. Every one of these injunctions came from a judge appointed by a Democratic president.
This is a dismaying picture, and is all but guaranteed to breed cynicism about the courts. Still, nationwide injunctions have their defenders. Arguments in their favor were especially appealing to liberal lawyers during the Trump administration. But now that the shoe is on the other foot, patience may be wearing thin. If you look closely, a bipartisan consensus may slowly be emerging that nationwide injunctions are inappropriate.
Judge Kacsmaryk clearly didn’t get the memo. Now, in fairness, he didn’t say he was entering a nationwide injunction. Instead, he said he was wiping the FDA’s approval of mifepristone from the books under the Administrative Procedure Act (APA), a bedrock 1946 statute allowing for court review of actions taken by federal agencies. No FDA approval, no mifepristone. (Actually, the judge said something stranger than that: He said he was postponing the effective date of mifepristone’s approval, even though the approval took effect 23 years ago. That’s bananas—the whole opinion, to be honest, is bananas—but for our purposes, it’s a distinction without a difference.)
[Patrick T. Brown: I’m pro-life. I worry that the abortion-pill ruling could backfire.]
Invoking the APA allowed the judge to rest his decision not on his discretionary power to issue injunctions, but on a supposedly clear legal command from Congress. That’s a growing trend in the lower courts. As nationwide injunctions get a bad odor, “universal vacatur” under the APA is taking its place. The APA says that courts shall “set aside” an agency’s unlawful action. The action is just gone, so it’s okay to prevent the government from relying on it. Hence, a nationwide injunction.
Just two weeks ago, for example, a different Texas judge used the APA to enter a “universal remedy” against agency rules requiring health insurers to cover certain preventive services free of charge under the Affordable Care Act. According to the judge, he had no choice in the matter.
Is that really what the “set aside” language means? Turns out that’s a lively topic of debate. Some judges on the D.C. Circuit, the influential appeals court in Washington, D.C., have concluded, without much analysis, that nationwide injunctions should typically accompany orders to “set aside” an agency action. At oral argument in a case last month, Chief Justice John Roberts suggested that he agreed: “With those of us who were on the D.C. Circuit, you know, five times before breakfast, that’s what you do in an APA case.” (Jonathan Adler at Case Western Law School has a good explanation for why the D.C. Circuit came to think this way.)
A narrower interpretation is available, however, and it’s a sounder one. According to the 1947 Attorney General’s Manual on the APA, the law was just “a general restatement of the principles of judicial review embodied in many statutes and judicial decisions.” One of those principles is that injunctions should be as narrow as possible while still providing complete relief to the injured party. Against that backdrop, it’d be odd to read words (i.e., set aside) that don’t mention injunctions as authorizing injunctions that are broader than necessary.
Recent work by John Harrison, a University of Virginia law professor, reinforces the point. When the APA was adopted, Harrison argues, Congress commonly used the words set aside to tell courts to ignore an unlawful action—to treat it as a nullity—in the case at hand. But that’s it. The APA didn’t confer the power to go further and enjoin or annul the action.
Say an employer, for example, files a lawsuit over an agency decision requiring businesses to cover certain preventive care for their workers, like in the other Texas case I mentioned. Under this narrower interpretation of the APA, the judge would ignore the agency decision—would set it aside—once it was found to be unlawful. Presto: The employer would no longer be subject to the obligation.
The underlying agency decision, however, would remain intact. No one except that employer’s workers would lose coverage. The agency that lost in court would then have to decide what to do in future cases. Maybe it would throw in the towel and let all employers off the hook. Maybe it would double down and fight in other courts. But that’s up to the agency, not the courts.
This debate over the APA hasn’t been conclusively resolved, and it may not be anytime soon. But the legal complexity shouldn’t be allowed to obscure a very simple point: It’s wildly improper in a democracy for a single judge to determine the rights of Americans everywhere. As I was reading Judge Kacsmaryk’s opinion, I couldn’t stop thinking of the satirist Alexandra Petri’s take on whether he might take the drug off the shelves:
Yes! This is a real possibility, because our legal system is working just the way it ought to work! In an ideal society, your rights and ability to access medicine and direct the course of your own life are guaranteed and unalterable—unless a Trump-appointed judge named Matt decides to say, “Nah.”
It doesn’t have to be like this. Judges such as Matt have assumed powers they were never given and that they ought not to have. The Supreme Court shouldn’t allow this, and should take its chance, whether in the mifepristone case or in another instance soon, to end nationwide injunctions.
